WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Indiana Michigan Power Company v. Host Master, Transure Enterprise Ltd

Case No. D2021-1869

1. The Parties

Complainant is Indiana Michigan Power Company, United States of America (“United States”), internally represented.

Respondent is Host Master, Transure Enterprise Ltd, United States.

2. The Domain Name and Registrar

The disputed domain name <aepngg.com> is registered with Above.com, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2021. On June 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on June 27, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on June 28, 2021.

The Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 19, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 21, 2021.

The Center appointed Frederick M. Abbott as the sole panelist in this matter on August 3, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

Complainant is a wholly-owned subsidiary of the American Electric Power Company (AEP) and is authorized to use its trademark in commerce. Complainant is the owner (via authorization) of registration of the word and design service mark (hereinafter “trademark”) AEP on the Principal Register of the United States Patent and Trademark Office (USPTO), registration number 0690010, registration dated December 15, 1959, in international class 42, covering “supplying of electric power”.

Complainant is the Nuclear Generation Group of American Electric Power, which operates the Donald C. Cook Nuclear Power Plant in southwestern Michigan, United States. “NGG” is an acronym for the Nuclear Generation Group. It is used by Complainant, inter alia, as part of the address (“aegngg”) for its Virtual Private Network (VPN) to which employees and business partners of Complainant have access. As employees of Complainant increasingly have worked remotely as a consequence of the Covid-19 pandemic, internal links within Complainant that may connect with its VPN network have sometimes been directed to the disputed domain name.

According to the Registrar’s verification, Respondent is registrant of the disputed domain name. According to that verification, the record of registration for the disputed domain name was created on March 29, 2012. There is no indication on the record of this proceeding that any party other than Respondent has owned or controlled the disputed domain name.

According to Complainant, at around the time of Respondent’s registration of the disputed domain name, Complainant terminated an employee who worked in the information technology department of the Nuclear Generation Group. Complainant believes that this employee created the disputed domain name with the intent of disrupting the business of Complainant. There is no reported active content at the Internet address identified by disputed domain name. However, attempts to access that address have generated a caution warning from Norton Safe Web security.

Complainant attempted to purchase the disputed domain name from Respondent through a third party, and received a counter offer at a price which Complainant describes as “well above” out-of-pocket costs.

The registration agreement between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)).

5. Parties’ Contentions

A. Complainant

Complainant alleges that it owns rights in the AEP trademark and that the disputed domain name is confusingly similar to that trademark.

Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) the website identified by the disputed domain name has no content other than possibly malware; (2) Respondent is not making legitimate noncommercial or fair use of the disputed domain name, and; (3) Respondent’s sole intent for registering and using the disputed domain name is to misleadingly divert employees and business partners of Complainant so as to disrupt its business or tarnish its trademark.

Complainant argues that Respondent registered and is using the disputed domain name in bad faith because: (1) Complainant believes that the disputed domain name was registered by an employee of NGG terminated at about the time the disputed domain name was registered; (2) the disputed domain name disrupts the business of Complainant; (3) Respondent made a counter-offer to a purchase offer from Complainant at well above the price of registering the disputed domain name; (4) there is no evidence that Respondent has any actual or contemplated good-faith use for the disputed domain name, and it is implausible that good-faith use could be made of the disputed domain name given its confusing similarity with Complainant’s trademark and NGG acronym, and; (5) Complainant’s efforts to contact the Registrar concerning the abusive disputed domain name have not successfully addressed this situation.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceeding that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

The Center formally notified the Complaint to Respondent at the email and physical addresses provided in its record of registration. Courier delivery to Respondent was successfully completed. The Center took those steps prescribed by the Policy and the Rules to provide notice to Respondent, and those steps are presumed to satisfy notice requirements.

Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.

Each of the aforesaid three elements must be proved by a complainant to warrant relief.

A. Identical or Confusingly Similar

Complainant has provided evidence of rights in the trademark AEP, including by registration at the USPTO and use in commerce. See Factual Background, supra. Respondent has not challenged Complainant’s assertion of rights. The Panel determines that Complainant has established rights in the trademark AEP.

The disputed domain name fully incorporates Complainant’s AEP trademark, adding the acronym “ngg”. For purposes of the Policy, incorporation of Complainant’s trademark in the disputed domain name is sufficient for a finding of confusing similarity. Complainant Nuclear Generation Group is known to business partners and internally as “NGG”. Addition of that NGG acronym to AEP does not preclude a finding of confusing similarity. Under the circumstances of this proceeding, addition of the distinctive NGG acronym supports a finding of confusing similarity, and is relevant for discussion under the second and third elements. The Panel determines that the disputed domain name is confusingly similar to Complainant’s AEP trademark.

The Panel determines that Complainant has established rights in the trademark AEP, and that the disputed domain name is confusingly similar to that trademark.

B. Rights or Legitimate Interests

Complainant’s allegations to support Respondent’s lack of rights or legitimate interests in the disputed domain name are outlined above in section 5A, and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name.

The disputed domain name combines the trademark acronym for a large publicly-traded utility company (AEP) with an acronym representing the name of its Nuclear Generation Group (NGG). This combination is sufficiently distinctive that it was unlikely to have been selected and registered by Respondent inadvertently. Complainant has put forward a plausible explanation for Respondent’s intent in registering the disputed domain name, which intent was to disrupt Complainant’s business. This purpose does not establish rights or legitimate interests on the part of Respondent.

Respondent’s use of the disputed domain name does not on its face manifest rights or legitimate interests. The Panel will not speculate regarding whether Respondent might have made some legitimate use of the disputed domain name. Respondent has not replied to the Complaint and has not attempted to rebut Complainant’s prima facie showing of lack of rights or legitimate interests.

The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

In order to prevail under the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith” (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that “for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith”. These include, “(i) circumstances indicating that [the respondent has] registered or [the respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the domain name; or (ii) [the respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or (iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location”.

Respondent registered the disputed domain name that incorporates the trademark (and acronym) of a major utility company in the United States (AEP) and combined it with the acronym (NGG) for its subsidiary Nuclear Generation Group. Given this unique and distinctive combination, it is highly unlikely that Respondent selected the disputed domain name for some purpose other than identifying Complainant’s Nuclear Generation Group. Since Respondent would have known of Complainant’s rights in its trademark, and its important interest in the acronym for its Nuclear Generation Group, Respondent almost certainly knew that his or her action prima facie involved adopting Complainant’s commercial identity.

Respondent is using the disputed domain name in a way that generates a warning from an Internet security firm. The Panel does not have information regarding what type of concern is presented, although Complainant suggests that malware may be involved. In any case, because of the identity of the disputed domain name is essentially the same as the name of Complainant’s VPN, used by staff and business partners, the business of Complainant is being disrupted by the disputed domain name.

It may be that when Respondent registered the disputed domain name in 2012, he or she would not have precisely identified the difficulty Complainant would confront as remote working became more essential during the COVID-19 pandemic. But, if Complainant is correct and Respondent is a former information technology staff employee who was terminated by Complainant, some type of disruption should have been foreseen by Respondent in adopting Complainant’s commercial identity. The Panel does not consider it material that eight or nine years passed between registration of the disputed domain name and the disruption of Complainant’s business. Of particular concern to the Panel, in addition to the current confusion caused with respect to Complainant’s VPN, is the ongoing prospect that the disputed domain name is susceptible for use in other types of abusive activities, including but not limited to transmission of falsified or deceptive email.

It is not inconceivable that Respondent might have made some good faith use of the disputed domain name. But the possibilities on their face appear extremely limited. Respondent has chosen not to respond to the Complaint, and the Panel will not engage in speculation regarding Respondent’s motives.

The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b) of the Policy to disrupt the business of Complainant.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <aepngg.com> be transferred to Complainant.

Frederick M. Abbott
Sole Panelist
Date: August 18, 2021